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​After a long and, at times, challenging day at the mediation table, the parties have been rewarded with a resolution. But, the work is not done. As Samuel Goldwyn once said: “An oral contract is as good as the paper it's written on.”

Without a signed agreement that confirms the settlement terms, the parties may be inviting more conflict over what they’ve agreed to. I’m not prepared to call it a day until everyone has signed on the dotted line. But, when this penultimate moment in the mediation process is reached, who drafts the minutes of settlement?

At a recent mediation one of the counsel involved asked if I would mind drafting the minutes. I’m not often asked to draft the minutes, but when the question comes up, I’m clear. As a general rule, it’s counsel’s role to draft the minutes. Thankfully, most lawyers are mindful of this responsibility. Very occasionally, I am asked to act as scribe, and I’m fine with that so long as it’s clear that the words on the page are the parties’.

Why my reluctance to draft the minutes after helping the parties reach the agreement they now want to document? I offer two reasons:

1. This is not the mediator’s agreement

At its core, my role as a mediator involves facilitating a negotiation process. I encourage, prod and cajole the parties to engage in focused and effective discussion and I strive to guide them towards a resolution of all issues in dispute. A mediation that leads to a resolution requires clear settlement terms. But, ultimately, these are the parties’ terms – not the mediator’s – to document and enforce. Accordingly, the parties (and their counsel) have the onus of ensuring that the mutually agreed upon terms are documented to their satisfaction. During the drafting process I will point out substantive terms that were agreed to and are missing from the minutes. I may also discuss language or phrasing, or act as a scribe if asked, but the parties make the final decision on wording. Bottom line: the parties are accountable to enforce the settlement agreement, so they are obliged to draft it.

2. Mediators put themselves in harms way by authoring the minutes

There is a real possibility that if a mediator drafts the minutes, their words may become contentious. That puts the mediator on the hook should issues of interpretation arise. As mediator Alan Stitt discusses in his book, Mediation: A Practical Guide, it is dangerous if the mediator drafts what he or she believes has been agreed upon. If a key point is omitted, or the language is arbitrary, it could cause further conflict down the road.

Two cases about mediation confidentiality highlight potential problems for mediators who undertake the drafting of minutes. An Ontario Divisional Court decision in Rudd v. Trossacs Investments Inc., 2006 CanLII 7034 (ON SCDC) upheld the confidentiality of settlement discussions by refusing to compel a mediator to testify about mediation communications. The mediator in this case had the parties sign a mediation agreement, which contained a confidentiality provision. However, this mediator had also helped draft the minutes and when the settlement fell apart, one party sought to compel the mediator to testify about communication at the mediation despite the existence of the confidentiality provision. Although the court did not address mediator compellability directly, in a future case on different facts a mediator who is heavily involved in drafting minutes may be required to give evidence. In Union Carbide Canada Inc. v. Bombardier, 2014 SCC 35, a dispute about a mediation’s terms of settlement led the Supreme Court of Canada to hold that a standard confidentiality clause in a mediation agreement does not preclude producing communications made during the mediation process to prove the scope of the settlement. Both cases suggest that there may be instances when a mediator will be compelled to testify about communications during the mediation. This would be particularly problematic if the parties are disputing the terms of settlement, and the mediator has drafted the minutes of settlement.

At first glance, the complications that can arise from a mediator’s involvement in drafting the minutes of settlement may be difficult to perceive. But considering the potential consequences, I err on the side of caution to avoid potential trouble down the road. To preserve and protect the confidentiality of the mediation process and my neutrality and independence as a mediator, I leave the drafting of the minutes of settlement to the parties and their counsel.

When I introduce the mediation process at the start of a mediation session, I make that clear. In line with that theme is the notion that mediated discussions are "off the record.”In other words, the substance of discussions at mediation cannot be used in any subsequent process. This includes offers made during the course of mediation.

Typically, prior to the commencement of a mediation session everyone at the table affirms their commitment to confidentiality by signing an Agreement to Mediate that contains a confidentiality provision.

Despite this backdrop, it is apparent that some counsel are reluctant to put their best and final offer on the table at mediation. These counsel fear that if the matter doesn't settle at mediation they will be stuck with their last offer when the case goes to pre-trial, when the first words out of the pre-trial judge's mouth are: "So, what were your final offers at mediation?"

I must confess, when I first caught wind of this pre-trial scenario, I was surprised and disappointed. I've now become accustomed to hearing it, but no less pleased. Counsel appreciate my concern but feel hamstrung - after all, when a judge asks a question you feel compelled to respond. That's what we've been taught to do.

In response, I offer three thoughts:

Judges should not be asking this question - while well intentioned and aimed at trying to determine the settlement gap, asking where the parties were at when mediation concluded completely undermines the commitment to confidentiality that we all make when we agree to mediate. (ok, I've said it - I feel better already!)

Counsel should move to protect themselves from this question by making it clear at mediation that any final offer made is presented on a without prejudice basis, with a limited lifespan, and that once the deadline for acceptance passes the offer evaporates into thin air.

If counsel are concerned about the probing minds of pre-trial judges, they might consider making a Rule 49 offer after the conclusion of mediation, which can be presented to a judge with a clear conscience.

A recent decision of a Florida appella﻿te court presents a valuable cautionary tale regarding the importance and scope of confidentiality provisions that form part of a negotiated settlement agreement.

InGulliver Schoo﻿ls, Inc. v. Snay, ﻿a Florida appellate court overturned a lower court decision on a motion to enforce a settlement agreement in an employment dispute as a result of a breach of a confidentiality provision in the agreement.

Patrick Snay filed a complaint of age discrimination when Gulliver Schools did not renew Snay's contract as headmaster.Snay was 69 at the time.The parties﻿ reached an out of court settlement with Gulliver to pay $10,000 in back pay, $80,000 in general damages and $60,000 in legal costs.

Significantly, the settlement agreement contained a confidentiality provision, which read:

﻿"13. Confidentiality. . . [T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicateto any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement. . . A breach . . .will result in disgorgement of the Plaintiffs portion of the settlement Payments."﻿Four days after the settlement agreement was signed, Gulliver notified Snay that he had breached the agreement based on the Facebook posting of Snay’s college-age daughter, which read:

"Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT."

Gulliver paid the legal fees portion of the settlement but refused to pay the balance, arguing the confidentiality provision had been breached.In reversing the lower court`s decision to uphold the settlement agreement, the appellate court concluded that Snay had violated the confidentiality provision by doing exactly what he said he wouldn`t do, while his daughter compounded the problem by doing what the provision was intended to prevent, advertising to the Gulliver community that Snay had been successful in his case against the school.

One of the key tenets and attractions of private mediation is confidentiality.Unlike the courtroom, where the process and outcome are public, parties that attempt mediation have committed to a confidential process.

In my introductory remarks to the parties and counsel at the outset of mediation, I carefully outline the confidential nature of the process and the ongoing commitment to that principle that is expected.To crystallize this commitment, the parties and counsel sign an Agreement to Mediate at the start of mediation that, among other terms, contains a confidentiality provision.And, when the parties do reach a resolution during the course of mediation, they invariably double-back on their commitment to confidentiality by addressing the issue in minutes of settlement and/or in a full and final release document.

Thankfully, confidentiality provisions rarely see the light of day after the conclusion of mediation, but times are changing and a big part of the problem may be the increasing use of social media and the careless disregard for its power.﻿In a February 19, 2013 blog, Hilary Linton discusses a October 2012 decision of the Ontario Human Rights Tribunal, in which a party to a mediated settlement was hit with a $1000.00 penalty for posting comments on Facebook about the mediation process (while it was ongoing) and the outcome, in breach of a confidentiality clause in the minutes of settlement.

In a September 5, 2013 blog, Andrew Cogswell explores a 2013 Ontario labour arbitration decision, in which a grievor had a monetary settlement rescinded after posting a letter on an employee bulletin board that outlined the terms of the monetary award and his displeasure with his Association’s decision to accept it on his behalf. [Cogswell’s blog came to my attention through a blog posted by Rob Boswell discussing the Gulliver decision.]

Confidentiality is an integral part of the mediation process and critical to the enforceability of a confidential settlement concluded at mediation. The above recent decisions impart two important lessons:1. breach the confidential terms of a mediated settlement at your peril - a failure to strictly adhere to the confidentiality terms of a mediated settlement may result in serious sanctions, including loss of all or significant portion of a monetary settlement, and 2. the use of social media to broadcast the confidential terms of a settlement is a sure-fire way to signal a breach.